Informed consent in the context of open licensing: some questions for discussion

The purpose of this post is to encourage sharing of knowledge and ideas on the topic of modifying informed consent when working with human subjects to accommodate open licensing. Questions can be found at the end of the post.

Researchers who work with human subjects, as is common in disciplines such as health sciences, education, and social sciences, are expected to obtain informed consent from subjects prior to starting research for ethical and legal reasons.

To obtain informed consent, researchers must explain what will happen with the subject’s information and material (if applicable) and the potential consequences for the subject (beneficial and potential harm).

Consent in the context of traditional publishing meant consent to publish in one specific venue, typically under All Rights Reserved copyright. Policies and procedures for informed consent developed in this context will need to be modified in order for authors to publish using open licenses that actively invite re-use (and sometimes modification) through human and machine-readable licenses, in some cases for commercial use.

To illustrate the difference: an educational researcher might wish to obtain and use a photo of schoolchildren in a publication. In the traditional context, this permission involved publication in one venue (one journal or one book), with re-publication requiring permission from the copyright owner (publisher and/or author). Until recently, such material, while not forbidden to the general public, would usually only be found in an academic library. This is still the case with journals and books that are not yet open access. Open access per se expands access to anyone with an internet connection, but free access on the Internet is automatically covered by copyright in all countries that are signatories to the Berne Convention. Open licensing goes beyond expanding access to inviting re-use. In the case of Creative Commons licensing, the invitation is extended via a human readable form that is designed to facilitate easy understanding of permitted uses, a machine readable form that can be used by searchers to facilitate limiting searches to content by desired use, and a legal license that most people are not likely to read.

For example, publication under a CC-BY license would include traditional uses, and other beneficial uses such as re-use by another researcher building on the work of the original. CC-BY would also invite uses that could be harmful to the subjects, such as targeted commercial social media advertising or use of a modified photo in a video game (schoolkid becomes loser kid, perhaps target practice).

This does not mean that such uses would necessarily be legal, rather that open licensing is an invitation that makes such uses more likely to occur. The harmful uses described above are likely a violation of moral rights under copyright, privacy and/or publicity rights. There are potential legal remedies, but these can only be pursued after the harm is done and discovered by a subject with the means and incentive to pursue legal remedies.

The Chang v. Virgin Mobile case is an illustration of what can happen with sensitive material and lack of understanding of the implications of licensing. In brief, a photographer took a photo of a minor girl (family friend) and posted it to Flickr under a CC-BY license. Virgin Mobile interpreted the license as an invitation to use the girl’s photo in an ad campaign. The girl’s family sued Creative Commons (dropped this one) and Virgin Mobile. The case was eventually dropped for jurisdictional reasons (girl in Texas, company in Australia). Lawrence Lessig wrote about the case, arguing that Virgin’s interpretation of copyright was correct, but that the girl still has privacy rights as minor. A bit more on this here:

https://wiki.creativecommons.org/wiki/Chang_v._Virgin_Mobile

The Committee on Publication Ethics has published guidance for journals with respect to one type of particularly sensitive material, medical case reports. Excerpt of their General Principles on this topic:

  • Publication consent forms should be required for any case report in which an individual or a group of individuals can be identified. This requirement also applies when a report involves deceased persons. Examples of identifying information are descriptions of individual case histories, photos, x-rays, or genetic pedigrees. A list of 23 potential identifiers has been published in BioMed Central’s Trials.
  • Journals should not themselves collect the signed consent forms, because the receipt and storage of confidential patient information could subject them to cumbersome security requirements and potential legal liability under applicable privacy or patient information laws, such as the Health Insurance Portability and Accountability Act of 1996 in the USA.

from:

https://publicationethics.org/resources/guidelines/journals%E2%80%99-best-practices-ensuring-consent-publishing-medical-case-reports

These principles are designed to protect journals and their publishers, and only speak to one particular type of sensitive material. For me, this raises some questions. If anyone on the list has answers or ideas, I would love to hear them, on or off-list or as blog comments. If you reply off-list or on the blog and would prefer to be anonymous, please let me know. If warranted, I will summarize responses.

Questions:

  1. COPE’s guidance is for the education and protection of journals. Is anyone aware of efforts for the education and protection of authors and their institutions on the topic of informed consent for open licensing?
  2. Do other publishers or organizations serving publishers have policies, guidance, sample forms, etc. to deal with informed consent and open licensing?
  3. Have any research ethics boards (or similar bodies) revised their guidance to accommodate informed consent and publication under open licenses?
  4. Is anyone aware of cases or analysis of potential implications of licensing for re-use for other types of material involving human subjects besides case reports?
  5. Do you have any other ideas or insights on this or closely related topics that I haven’t asked about?

Cite as:

Morrison, H. (2019). Informed consent in the context of open licensing: Some questions for discussion. Sustaining the Knowledge Commons / Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/2019/08/27/informed-consent-in-the-context-of-open-licensing-some-questions-for-discussion/

 

 

Open access versus the commons, or steps towards developing commons to sustain open access

by Heather Morrison

Abstract

The concept of open access is complementary to, and in opposition to the commons. The similarities and overlap appear to be taken for granted; for example, many people assume that open access and Creative Commons just go together. The purpose of this post is to explore the essential opposition of the two concepts. The so-called “tragedy of the commons” is actually the tragedy of unmanaged open access. Understanding this opposition is helpful to analyze the potential of commons analysis to develop and sustain actual commons (cool pool resources) to support open access works. Ostrom’s design principles for common pool resources are listed with comments and examples of open access supports that illustrate the principles and a proposed modified list design to meet the needs of open access infrastructure is presented.

Details

The purpose of the Sustaining the Knowledge Commons research program (and blog) is to advance our knowledge of how to build and sustain a global knowledge commons. I define the knowledge commons as a collective sharing of the knowledge of humankind that is as open access as possible, in the sense of free of charge and free of most copyright and licensing restrictions. My vision of the knowledge commons is one that is inclusive, that is, all who are qualified are welcome to contribute. The vision is simple. Understanding and articulating what is necessary to achieve the vision is not simple, and I argue that it will require developing new theoretical and empirical knowledge.

The purpose of this post is to focus on the relationship between two basic concepts, “open access” and “the commons”. There is an intuitive complementarity between the two concepts that might be best understood as an outcome of recent historical developments. The open sharing of Web 2.0 or social media, the open access movement, renewed interest in the concept of the commons, and the development and growth of Creative Commons, have all occurred in the past few decades. The nature and title of this research program Sustaining the Knowledge Commons reflects an ellipse of the two concepts. To advance our knowledge, sometimes it is necessary to question our basic assumptions. For this reason, acknowledging the complementarity of the two concepts, this post focuses on open access and the commons as oppositional in essence. I explain why this matters and how commons design principles might be used to develop and sustain open access organizations and infrastructure (as opposed to open access works).

As Ostrom (2015) points out in the second chapter of her ground-breaking Governing the Commons, the example of the “tragedy of the commons” as presented by Harding in an influential article – a pasture where any herdsman can graze – is not a commons, but rather a pasture that is open to all, an open access resource. A commons is not an open access resource, but rather a resource that is collaboratively managed by a group of people who benefit from the resource who develop, monitor and enforce rules for collective management of the resource. Ostrom presents empirical examples of successful and unsuccessful commons or common pool resources (CPRs) and articulates design principles for successful CPRs.

Ostrom’s research focuses on limited physical resources such as fisheries and water, and acknowledged that research on such CPRs is at a very early stage. The extent to which design principles based on physical CPRs can be employed to understand the potential for electronic commons, where there is no limit to the re-use of resource per se is not known. A few researchers have made an effort at this analysis. For example, Hess and Ostrom (2007) edited a book on understanding knowledge as a commons, one of the influences inspiring my own work and the title of this research program and blog.

Resources versus infrastructure

To understand why it matters that open access and the commons are oppositional concepts, consider the difference between open access works (articles, journals, books, data etc.) and the infrastructure that is needed to create and sustain open access resources. The only restriction to use of an open access resource is reader-side infrastructure (computer and internet) and ability to read and understand. However, the creation and ongoing support of open access works requires resources (hardware, software, internet connectivity, editors). This – the infrastructure to build and sustain open access works – is where Ostrom’s design principles for common pool resources is most likely to be fruitful. Examples of open access infrastructures that are, or could be, managed as common pool resources include: OA journals produced by independent scholars or groups of scholars (e.g. society or university-based); open source journal publishing (e.g. Open Journal Systems); university consortia sharing of infrastructure and /or support for open access (e.g. Scielo, Ontario’s Scholar’s Portal, Open Library of the Humanities).

Design principles for common pool resources

Table 3.1 of design principles is Ostrom’s (2015, p. 90) summary of her findings of characteristics of successful CPRs. Following are proposed minor modifications of the design principles for open access infrastructure, and examples of how these design principles might be useful for open access infrastructure (as opposed to open access works).

“Table 3.1. Design principles illustrated by long-enduring CPR institutions

  1. Clearly defined boundaries
    Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.
  2. Congruence between appropriation and provision rules and local conditions Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local conditions and to provision rules requiring labor, material, and/or money.
  3. Collective-choice arrangements
    Most individuals affected by the operational rules can participate in modifying the operational rules.
  4. Monitoring
    Monitors, who actively audit CPR conditions and appropriator behavior, are accountable to the appropriators or are the appropriators.
  5. Graduated sanctions
    Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.
  6. Conflict-resolution mechanisms
    Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators or between appropriators and officials.
  7. Minimal recognition of rights to organize
    The rights of appropriators to devise their own institutions are not challenged by external governmental authorities.

For CPRs that are parts of larger systems:

  1. Nested enterprises
    Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises”.

Can Ostrom’s CPR design principles might be applied to OA resources? Examples, comments, and proposed modified design principles

Ostroms’ design principle “1: Clearly defined boundaries
Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself”.

Proposed modified design principle:

1: Clearly defined boundaries
Individuals or organizations who have rights to participate in and benefit from CPR must be clearly defined, as must the boundaries of the CPR itself.

Examples

Scielo (Scientific Electronic Library Online): Criteria, policies and procedures for admission and permanence of scientific journals in the SciELO <country> Collection https://wp.scielo.org/wp-content/uploads/2019/02/Criterios_Rede_SciELO_jun_2018_EN.pdf

  • Anyone with internet access can read the Scielo journals. Journals that wish to be included must meet the criteria.

PubMedCentral: How to include a journal in PMC https://www.ncbi.nlm.nih.gov/pmc/pub/addjournal/

  • Anyone with internet access can read the journals included in PMC. To be included, journals must meet scope, technical and quality requirements.

Ostrom’s Design Principle 2: “Congruence between appropriation and provision rules and local conditions. Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local conditions and to provision rules requiring labor, material, and/or money”.

Proposed modified design principle:

2: “Congruence between participation and provision rules and local and/or disciplinary conditions. Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local and/or disciplinary conditions and to provision rules requiring labor, material, and/or money”.

Examples

Institutional repositories such as uO Recherche https://ruor.uottawa.ca/ are very well aligned with design principle 2. Policies are set by the university and reflect regional practice and law (e.g. copyright law). Staff are paid local wage rates in local currency. Decisions about software, hardware and support can reflect local preferences (e.g. for open source software or proprietary solutions, stand-alone or collaborative repositories) and budgets. In the case of my own university, the University of Ottawa, the institutional repository reflects the official French / English bilingualism of the university.

The HAL archives-ouvertes.fr https://hal.archives-ouvertes.fr/ is a collaborative repository reflecting the research community and language of France.

Ostrom’s Design Principle 3: “Collective-choice arrangements
Most individuals affected by the operational rules can participate in modifying the operational rule

This principle fits smaller CPRs; see design principle 8 on nested enterprises for global open access. For example, university-based researchers can participate in policy consultations for the local institutional repository; members of the editorial board of a journal can participate in setting policy (the principle is the same whether the journal is open access or not).

Ostrom’s Design Principles 4:, 5, and 6 are treated together as OASPA provides examples of all:

“4. Monitoring
Monitors, who actively audit CPR conditions and appropriator behavior, are accountable to the appropriators or are the appropriators”.

5. Graduated sanctions
Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.

6. Conflict-resolution mechanisms
Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators or between appropriators and officials”.

Example: the Open Access Scholarly Publisher’s Association (OASPA) Membership Applications, Complaints and Investigations https://oaspa.org/membership/membership-applications/ displays characteristics of a CPR where members (appropriators) actively practice monitoring, graduated sanctions, and conflict-resolution mechanisms. Even after being accepted as members, OASPA members may be identified by other members as not meeting the criteria for acceptance (monitoring); these complaints trigger a conflict-resolution mechanisms that involves a series of graduated sanctions, investigation, possible requirement for the member to alter policies and/or practice and potential termination of membership.

Ostrom Design Principle “7. Minimal recognition of rights to organize
The rights of appropriators to devise their own institutions are not challenged by external governmental authorities”.

Proposed modified Design Principle “7. Minimal recognition of rights to organize
The rights of participants to devise their own organizations are not challenged by external authorities or bodies”.

Comment: this principle could be applied in the context of open access to the rights of researchers to develop their own institutions or organizations (e.g. based on common disciplinary requirements) and/or rights of local institutions to develop their own approach (as opposed to global open access policy).

Example

The Open Library of the Humanities https://www.openlibhums.org/ was developed by scholars in the humanities to support open access in the humanities. Design Principle 7 recognizes the right of scholars to organize in this fashion.

Ostroms’ Design Principle 8. “Nested enterprises
Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises”.

Comment: this is the principle that most needs development for sustainable open access on a global scale. Every country, region, and discipline needs to contribute to create and sustain open access. This requires many organizations of different types and sizes, each with its own set of principles and approach to monitoring, sanctions, and conflict resolution. This needs to be coordinated (but not controlled) at a higher level for permanent open access to succeed.

Proposed modified design principles for a global knowledge commons

  1. Clearly defined boundaries
    Individuals or organizations who have rights to participate in and benefit from CPR must be clearly defined, as must the boundaries of the CPR itself.
  2. Congruence between participation and provision rules and local and/or disciplinary Appropriation rules restricting time, place, technology, and/or quantity of resource units are related to local and/or disciplinary conditions and to provision rules requiring labor, material, and/or money.
  3. Collective-choice arrangements
    Most individuals affected by the operational rules can participate in modifying the operational rules.
  4. Monitoring
    Monitors, who actively audit CPR conditions and appropriator behavior, are accountable to the appropriators or are the appropriators.
  5. Graduated sanctions
    Appropriators who violate operational rules are likely to be assessed graduated sanctions (depending on the seriousness and context of the offense) by other appropriators, by officials accountable to these appropriators, or by both.
  6. Conflict-resolution mechanisms
    Appropriators and their officials have rapid access to low-cost local arenas to resolve conflicts among appropriators or between appropriators and officials.
  7. Minimal recognition of rights to organize
    The rights of participants to devise their own organizations are not challenged by external authorities or bodies”.
  8. Nested enterprises
    Appropriation, provision, monitoring, enforcement, conflict resolution, and governance activities are organized in multiple layers of nested enterprises.

Acknowledgement

This post builds on conversations with prior SKC research collaborator Alexis Calvé-Genest.

References

Hess, C. & Ostrom, E., eds. (2007). Understanding knowledge as a commons: from theory to practice. Cambridge, Mass: MIT Press.

Ostrom, E. (2015). Governing the Commons: The Evolution of Institutions for Collective Action (Canto Classics). Cambridge: Cambridge University Press. doi:10.1017/CBO9781316423936

Cite as:  Morrison, H. (2019). Open access versus the commons, or steps towards developing commons to sustain open access. Sustaining the Knowledge Commons / Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/2019/04/23/open-access-versus-the-commons-or-steps-towards-developing-commons-to-sustain-open-access/

Why I oppose conflating OA and open licensing

In brief, my reasons for opposing conflation of open access and open licensing is that open licenses are not sufficient, necessary, or always desirable for open access.

Not sufficient: there are two reasons why open licenses are not sufficient. One is that there is nothing in CC licenses that obligates any copyright holder or downstream re-user to continue to make a work available at all, never mind free of charge. For example, an obvious beneficiary of works made available for commercial downstream re-use is Elsevier through their toll access search service Scopus. If we consider “free of charge” to be an essential element of open access (I do), CC licenses allowing downstream commercial use are not enough. The second reason is that scholars will always need to study and draw from works that are beyond the scope of research, and for this reason we need strong fair use / fair dealing provisions in copyright. For example, while PLOS is a model for open licensing with respect to articles published, as a scholar in the area of open access economics, I need to be able to quote language from the PLOS website in this area, and the PLOS website per se is All Rights Reserved; my work requires fair dealing rights. PLOS is not unusual in this; differential licensing is common for “CCBY by default” publishers.

Not necessary: works that are online, free to read and free of most technological restrictions on re-use are in effect sufficient for most of the intended purposes of open licensing. Consider what Google is able to do with internet-based works without having to restrict searching to works that are openly licensing. A work in HTML or XML with no technological protection measures (TPM) and no copyright statement (automatic All Rights Reserved copyright in any Berne country) can be used for text mining and portions of the work can be copied, with attribution, under fair dealing. In contrast, a work with an open license that is produced in a format that includes TPMs is less available for the purposes intended by open licensing than many works that are openly licensed. It is important to understand that TPMs are used not only to protect copyright, but also to protect the integrity of works, for example to look and feel of graphics as well as their position with respect to text.

Not necessarily desirable: open licensing, I argue, is not always desirable. For example, researchers who work with human subjects (very common in the social sciences) have a primary ethical duty to protect their subjects from harm. There is a wide range of sensitivity of information shared with researchers, ranging from quasi-public to extremely sensitive. Material such as stories and images shared with researchers for the purposes of advancing knowledge should not be made available on a blanket basis for re-use including commercial purposes. In developing policy attention should be paid to common commercial uses of this kind of material, particularly in the area of social media. Decisions about open licensing are in effect decisions about balancing the benefits of open licensing and our ethical duty to protect human subjects. I argue that our ethical duty to protect human subjects requires a conservative approach, in individual research projects, research support services, and policy-making.


This post is an excerpt of a recent open peer review, presented by way of explanation of why I am posting an open peer review in a journal with a default license of CC-BY under All Rights Reserved copyright. The remainder of the sections of this open review that are relevant to copyright are posted below.

An open peer review of “Few open access journals are Plan S compliant”: third and final round by Dr. Heather Morrison, Associate Professor, University of Ottawa School of Information Studies, and Principal Investigator, Sustaining the Knowledge Commons, a SSHRC Insight Project. Copyright Dr. Heather Morrison, All Rights Reserved (explanation below)…

Copyright Dr. Heather Morrison, All Rights Reserved: explanation The default license for MDPI’s Publications is CC-BY. From the perspective of many open access advocates, open licensing is an inherent part of open access. As discussed by the authors, this assumption forms part of the Plan S compliance criteria; compliance requires CC-BY, CC-BY-SA, or CC-0 licensing, with recognition that funded researchers cannot impose open licensing on third party copyright owners whose works are include in Plan S funded researchers’ works. I argue that conflating open access and open licensing is a major strategic error for the open access movement, and that it is important for open access advocates to understand that arguments opposing open licensing requirements can reflect a strong position in favour of open access. It is a mistake to think that because traditional subscription-based publishers oppose open licensing for business reasons that this is the only reason for this opposition. Oxford University Press is currently imposing differential fees for authors requiring CC-BY, according to my research team that is gathering information on APCs. I oppose CC-BY requirements, but not for the same reason as Oxford. (in the original, from here go to the top of this post).

I have posted similar arguments in the series Creative Commons and Open Access Critique on my original scholarly blog, The Imaginary Journal of Poetic Economics. I plan to republish some of the content on this blog here and/or in other venues as there are some reports that people are having difficulty accessing the blog (hope this is temporary).

Cite as:

Morrison, H. (2019). Why I oppose conflating OA and open licensing. Sustaining the Knowledge Commons / Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/2019/04/09/why-i-oppose-conflating-oa-and-open-licensing/

Open to closed: how releasing government data into the public domain can result in loss of free public access

Boettcher & Dames (2018) raise some important issues regarding public domain government data. In brief, the U.S. federal government releases data into the public domain by default. This raises 2 potential types of issues:
  • privacy and security of individuals’ data
  • potential for enclosure / privatization of free public services if the government’s data is released as open data but the government does not maintain a free human readable version
From:
Boettcher, J. C., & Dames, K. M. (2018). Government Data as Intellectual Property: Is Public Domain the same as Open Access? Online Searcher42(4), 42–48.

https://repository.library.georgetown.edu/handle/10822/1051174

Abstract
Public domain and open data policies and how they are made. Current status of open data policies in the Federal government are changing with new laws. What is HR4174/S4047 and what does it say and mean? What are trends in government data policies regarding access to that statistical data? This article will give the reader an understanding of federal policies and laws regarding data.
Citation: see “From” above, this post is just a pointer to the Boettcher & Dames article. Recommended: read the original article first.

Ceased and transferred publications and archiving: best practices and room for improvement

In the process of gathering APC data this spring, I noticed some good and some problematic practices with respect to journals that have ceased or transferred publisher.

There is no reason to be concerned about OA journals that do not last forever. Some scholarly journals publish continuously for an extended period of time, decades or even centuries. Others publish for a while and then stop. This is normal. A journal that is published largely due to the work of one or two editors may cease to publish when the editor(s) retire. Research fields evolve; not every specialized journal is needed as a publication venue in perpetuity. Journals transfer from one publisher to another for a variety of reasons. Now that there are over 11,000 fully open access journals (as listed in DOAJ), and some open access journals and publishers have been publishing for years or even decades, it is not surprising that some open access journals have ceased to publish new material.

The purpose of this post is to highlight some good practices when journals cease, some situations to avoid, and room for improvement in current practice. In brief, my advice is that when you cease to publish a journal, it is a good practice to continue to list the journal on your website, continue to provide access to content (archived on your website or another such as CLOCKSS, a LOCKKS network, or other archiving services such as national libraries that may be available to you), and link the reader interested in the journal to where the content can be found.

This is an area where even the best practices to date leave some room for improvement. CLOCKSS archiving is a great example of state-of-the-art but CLOCKSS’ statements and practice indicate some common misunderstandings about copyright and Creative Commons licenses. In brief, author copyright and CC licenses and journal-level CC licensing are not compatible. Third parties such as CLOCKSS should not add CC licenses as these are waivers of copyright. CC licenses may be useful tools for archives, however archiving requires archives; the licenses on their own are not sufficient for this purpose.

I have presented some solutions and suggestions to move forward below, and peer review and further suggestions are welcome.

Details and examples

Dove Medical Press is a model of good practice in this respect. For example, if you click on the title link for Dove’s Clinical Oncology in Adolescents and Young Adults a pop-up springs up with the following information:

“Clinical Oncology in Adolescents and Young Adults ceased publishing in January 2017. All new submissions can be made to Adolescent Health, Medicine and Therapeutics. All articles that have been published in Clinical Oncology in Adolescents and Young Adults will continue to be available on the Dove Press site, and will be securely archived with CLOCKSS”.

Because the content is still available via Dove’s website, the journal is not included on the CLOCKSS’ list of triggered content. This is because CLOCKKS releases archived content when it is no longer available from the publisher’s own website.

CLOCKSS Creative Commons licensing statement and practice critique

One critique for CLOCKSS: – from the home page:  “CLOCKSS is for the entire world’s benefit. Content no longer available from any publisher (“triggered content”) is available for free. CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever”.

This reflects some common misperceptions with respect to Creative Commons licenses. As stated on the Creative Commons “share your work” website:  [your emphasis added] “Use Creative Commons tools to help share your work. Our free, easy-to-use copyright licenses provide a simple, standardized way to give you permission to share and use your creative work— on conditions of your choice“.

The CLOCKSS statement  “CLOCKSS uniquely assigns this abandoned and orphaned content a Creative Commons license to ensure it remains available forever” is problematic for two reasons.

1. This does not actually reflect CLOCKSS’ practice. The Creative Commons statements associated with triggered content indicate publisher rather than CLOCKSS’ CC licenses. For example, the license statement for the Journal of Pharmacy Teaching on the CLOCKSS website states: “The JournalPharmacyTeaching content is copyright Taylor and Francis and licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License”.

2. This would be even more problematic if it did reflect CLOCKSS’ practice. This is because CLOCKSS is not an author or publisher of the scholarly journals and articles included in CLOCKSS. Creative Commons provides a means for copyright owners to indicate willingness to share their work. When a third party such as CLOCKSS uses CC licenses, they are explicitly or implicitly claiming copyright it order to waive their rights under copyright. This reflects an expansion rather than limitation of copyright that may lead to the opposite of what is intended. For example, if one third party is a copyright owner that wishes to claim copyright in order to grant broad-based downstream rights, another third party could use the copyright claim to support their right to claim copyright in order to lock down others’ works. A third party that is a copyright owner providing free access today could use this copyright claim in future as a rationale for toll access. This could come into play if in future toll access seems more desirable from a business perspective.

The CLOCKSS practice of publisher-level copyright (see 1. above) is problematic because Creative Commons first release of CC licenses was in December 2002. Scholarly journal publishing predates 2002 (the first scholarly journals were published in 1665), and not every journal uses CC licenses even today. Retroactive journal-level CC licensing would require re-licensing of every article that was published prior to the journal’s first use of CC licensing.

For example, the copyright statements of volume 1 dated 1990 on the PDFs of the CLOCKSS-triggered Journal of Pharmacy Teaching read: “Journal of Pharmacy Teaching, Vol. l(1)1990 (C) 1990 by The Haworth Press, Inc. All rights reserved”. This suggests that all authors in this journal at this point in time assigned full copyright to The Haworth Press, although actual practice was probably more complex. For example, if any authors were working for the U.S. federal government at the time, their work would have been public domain by U.S. government policy. Any portions of third party works included would likely have had separate copyright. Even assuming the simplest scenario, all authors had and transferred all rights under copyright to Haworth Press, the authors would retain moral rights, hence it would be necessary to contact all of the authors to obtain their permission to re-license the works under Creative Commons licenses.

The idea of journal-level CC licensing is at odds with the idea of author copyright. This confusion is common. For example, the website of the Open Access Scholarly Publisher’s Association Licensing FAQ states: “one of the criteria for membership is that a publisher must use a liberal license that encourages the reuse and distribution of content” and later “Instead of transferring rights exclusively to publishers (the approach usually followed in subscription publishing), authors grant a non-exclusive license to the publisher to distribute the work, and all users and readers are granted rights to reuse the work”. If copyright and CC licenses really do belong to the authors, then journal-level Creative Commons license statements are incorrect.

Even more room for improvement

The above, while leaving some room for improvement, appears to reflect best practices at the present time. Other approaches leave even more room for improvement. For example, in 2016 Sage acquired open access publisher Libertas Academica. The titles that Sage has continued can now be found on the Sage website. The Libertas Academica titles that Sage no longer publishes can be found as trigged content on the CLOCKSS website. However, the original Libertas Academica website no longer exists and there is no indication of where to find these titles from the Sage website.

Titles that were formerly published by BioMedCentral are simply no longer listed on the BMC list of journals. For example, if you would like to know where to find Gigascience, formerly published by BMC, you can find information at the site of the current publisher, Oxford. A note on the SpringerLink page indicates that BMC maintains an archive of content on its website. However, if you look for Gigascience on the BMC journal list, it simply is not listed. It would be an improvement to follow the practice of Dove and include the title, link to the archived content, and provide a link to the current publisher.

Solutions? Some suggestions

If journals and publishers were encouraged to return copyright to the authors when a journal is no longer published, or a book is no longer being actively marketed (in addition to using their existing rights to archive and make works freely available), then authors, if they chose to do so, could release new versions of their works. For example, a work currently available in PDF could be re-released in XML to facilitate text and data-mining, or perhaps updated versions, and authors could, if desired, release new versions with more liberal licenses than journal-level licenses that must of necessity fit the lowest common denominator (the author least willing or able to share).

Education, among the existing open access community, and beyond is needed. First, we need to understand the perhaps unavoidable micro level nature of at least some elements of copyright under conditions of re-use of material. For example, if a CC-BY licensed image by one photographer or artist is included in a scholarly article written by a different person that is also CC-BY licensed, the moral rights, including attribution, are different for the copyright holder of the image and that of the author of the article. In academia, attribution and moral rights are essential to our careers.

The intersection of plagiarism and copyright is different in academia. If one musical composer copies another’s work, copyright law is likely the go-to remedy. If a student presents someone else’s work as their own, academic procedures for dealing with plagiarism will apply, regardless of the copyright status of the work. For example, the musician using a public domain work need not worry about copyright but the student using a public domain work without attribution is guilty of plagiarism and likely to face serious consequences. Evolving norms for other types of creators (amateur or professional photographers, video game developers) may not work for academia.

For CLOCKSS, a statement that all triggered content is made freely available to the public, and that additional rights may be available for some works, with advice to look at the work in question to understand re-use rights, would be an improvement.

Your comments and suggestions?

This is an area where even today’s best practices are wanting, and the solutions / suggestions listed above are intended as an invitation to open a conversation on potential emerging practices that may take some time to fully figure out. Peer review and suggestions are welcome, via the comments section or e-mail. If you are using e-mail, please let me know if I may transfer the content to this post and if so whether you would like to be attributed or not.

This post is cross-posted to my Imaginary Journal of Poetic Economics scholarly blog and forms part of the Creative Commons and Open Access Critique series. Comments and suggestions are welcome on either blog.

Cite as:

Morrison, H. (2018). Ceased and transferred publications and archiving: Best practices and room for improvement. Sustaining the Knowledge Commons / Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/2018/07/05/ceased-and-transferred-publications-and-archiving-best-practices-and-room-for-improvement/

 

Elsevier: libre accès et droit d’auteur

Résumé

À partir de la liste des frais de publication (APC) des revues publiées en libre accès complet par Elsevier, nous avons extrait les 282 revues ne chargeant pas d’APC pour en analyser les composantes liées au droit d’auteur. Nous avons établi que 94% de notre corpus était commandité par une société ou une université. Nous avons aussi découvert que dans 76% des cas, les droits d’auteurs revenaient au sponsor de la revue (société ou université), dans 10% à l’auteur, dans 3% des cas à Elsevier. Enfin, nous avons établi que la licence de droit d’auteur la plus revendiquée est la CC BY-NC-ND (201 sur 282).

 

À partir de la liste des frais de publication des revues publiées en libre accès ou en format hybride téléchargée sur le site d’Elsevier le 11 février 2017 (https://www.elsevier.com/about/our-business/policies/pricing)*, nous avons extrait les revues ne chargeant pas de frais de publication (APC) pour en analyser les mentions de droit d’auteur et leurs implications. Notre corpus est composé de 282 revues.

D’abord, parmi les 282 revues en libre accès complet ne chargeant pas d’APC, 94% (tableau 1) indiquaient, sur leur fiche descriptive, disponible sur le site internet d’Elsevier, une mention claire de sponsorship par une société ou une université. 6% d’entre elles ne portaient pas d’indication portant sur un parrainage par une société ou une université.

Tableau 1

2017-07-04_14-43-29

Parmi les 282 revues en libre accès complet ne chargeant pas d’APC, les entités présumées conservant les droits d’auteur se divisent ainsi (voir aussi tableau 2) :

  • 76% : les universités ou les sociétés (8% autres : possiblement les universités ou sociétés)
  • 10% : les auteurs (les composantes de l’attribution du droit d’auteur aux auteurs d’articles demeurent nébuleuses. Pour plus d’information, voir Morrison, H. (2017). Elsevier: among the world’s largest open access publishers as of 2016. https://ruor.uottawa.ca/handle/10393/35779)
  • 3% : Elsevier (1 revue portait une mention de droit d’auteur conjointe aux commanditaires et à Elsevier)
  • 3% : Information non trouvée, non spécifiée ou incertaine

Tableau 2

2017-07-04_14-44-14

Enfin, bien que la majorité des revues de notre corpus (201) publient les articles sous la licence CC BY-NC-ND (qui est la plus contraignante des licences Creative Commons, voir https://creativecommons.org/licenses/?lang=fr ), certaines revues (4) emploient la plus permissive des licences, la CC BY, alors que d’autres (37) indiquent la mention All rights reserved**. Nous n’avons pas été en mesure de trouver l’information portant sur la licence de droit d’auteur pour 40 revues (non spécifié, non trouvé, incertain). Voir tableau 3.

Tableau 3

2017-07-04_14-45-07

À noter qu’entre le 11 février et le 8 avril 2017, le nombre de revues en libre accès complet compilé par Elsevier sur une liste comprenant aussi les prix des frais de publication a diminué de 38 titres. Nous avons déterminé que dans le cas de 12 revues, ces dernières avaient été transférées de nouveau au détenteur des droits (la société ou l’université). Dans un cas, la revue a été transférée à un autre éditeur, Wolters Kluwer. Une revue n’est plus publiée. Les 12 revues dont le contrôle a été repris par la société ou l’université appuient l’argument de Morrison (2017) indiquant qu’il y a un bénéfice à la rétention des droits pour l’université ou la société. Comme le mentionne Morrison :

« Some OA activists will be disappointed in the society ownership of copyright of many of Elsevier’s Open Access journals. I see this as healthy. The alternative is likely not a vision of pure creative commons licensing with only attribution to the author; the alternative seems to be more likely to be Elsevier copyright retention. Societies and institutions that retain their copyright are free to seek alternative hosts or partners whenever their contracts with Elsevier come up for renewal. »

(H. Morrison (2017). From the Field: Elsevier as an Open Access Publisher. The Charleston Advisor 18(3), pp. 53-59(7) http://www.ingentaconnect.com/content/charleston/chadv/2017/00000018/00000003/art00014)

*Cette liste est modifiée fréquemment sans préavis.

** Nous nous contentons ici d’indiquer les mentions de droits d’auteur retrouvées sur le site internet Elsevier, le site internet Science Direct sur lequel sont diffusées plusieurs revues sous contrat avec Elsevier, et sur les articles publiés par ces revues. La question demeure toutefois beaucoup plus complexe qu’elle n’y paraît.

Citation:

Dumais-Desrosiers, M. (2017). Elsevier: Libre accès et droit d’auteur. Soutenir Les Savoirs Communs. Retrieved from https://sustainingknowledgecommons.org/elsevier-libre-acces-et-droit-dauteur/

Editorial: Open access, copyright and licensing: basics for open access publishers

by Heather Morrison & Lisa Desautels

Just published (February 2016) in the open access Journal of Orthopaedic Case Reports at the invitation of Editor-In-Chief Dr. Ashok Shyam: Editorial: open access, copyright and licensing: basics for open access publishers. Journal of Orthopaedic Case Reports 6:1 p. 1-2. DOI: 10.13107/jocr.2250-0685.360

Cite the original article (not this blogpost) as:

Morrison, H., & Desautels, L. (2016). Editorial – Open access, copyright and licensing: Basics for open access publishers. Journal of Orthopaedic Case Reports. Retrieved from http://www.jocr.co.in/wp/2016/01/02/2250-0685-360-fulltext/

Open access publishing: current issues in copyright and licensing

Update December 2019: The Imaginary Journal of Poetic Economics appears to have been caught up in internet security efforts (falsely flagged). Re-publishing the blog and its contents on another venue is on my to-do list. There is a lot of content so this may take a while and it will be probably be some time before I schedule the work. If there are particular posts or series people would like to see sooner please let me know.

I’m recording some instances of issues as we come across them on The Imaginary Journal of Poetic Economics to keep the Creative Commons and Open Access Critique series together on one blog.

Heather at the Emerging Trends in Scholarly Publishing Seminar

Heather Morrison presented as an invited speaker on the topic of open access and creative commons licensing at the Emerging Trends in Scholarly Publishing in Washington, D.C. on April 16, 2015. Links to view a video of her presentation or download her slides can be found in the institutional repository (links to conference website previously posted are no longer available).

Morrison, H. (2015). Open access & copyright: Let’s start the conversation. Invited speaker. Presented at the Emerging trends in publishing seminar, Washington, D.C., sponsored by Allen Press. Retrieved from http://ruor.uottawa.ca/handle/10393/39972

Open access and copyright: let’s open the conversation

Thanks to Allan Press for an opportunity to talk about this important emerging issue in open access publishing (and to colleagues on the global open access list) – here are the slides from my talk.

hgmEmergingTrendsforposting

The final version is available here:

Morrison, H. (2015). Open access & copyright: Let’s start the conversation. Invited speaker presented at the Emerging trends in publishing, Washington, D.C. Retrieved from http://ruor.uottawa.ca/handle/10393/39972